1. Bills before Parliament (employment related)

The new session of Parliament began on Wednesday, 26th November 2003. Twelve new bills have been introduced or announced which relate to a greater or lesser extent to employment law:

1. Armed Forces Pensions Compensation Bill; 2. Asylum and Immigration (Treatment of Claimants etc) Bill; 3. Civil Partnership Bill; 4. Companies (Audit, Investigations and Community Enterprise) Bill; 5. Draft Disability Discrimination Bill; 6. Employment Relations Bill; 7. European Union Bill; 8. Fire and Rescue Services Bill; 9. Gender Recognition Bill; 10. National Insurance Contributions and Statutory Payments Bill; 11. Partnerships Bill; 12. Pensions Bill;

2. Employment Relations Bill

3. TUPE

• The DTI has still not published the long awaited draft amendments to the TUPE regulations but they are now expected in the very near future
  
• The Employment Appeal Tribunal in Scotland has ruled that the TUPE regulations do NOT apply to a liquidator who is merely gathering in assets in order to sell them for the benefit of creditors

4. Refund of overpayments to staff

The normal rule is that an employer may not deduct anything except PAYE, NIC's and agreed amounts from an employee's pay. There is a statutory exception for deductions to reimburse the employer for overpayment of wages or expenses. A case came before the Court of Appeal in November 2003 in which an employer had deducted £250,000, no less, from a young city banker's pay on the grounds that it overpaid that amount by mistake in an earlier bonus payment. The High Court found for the young man. The Court of Appeal disagreed and found for the bank. The decision is essential reading for any employer considering docking money from an employee's pay packet.

5. Tax on termination settlements

Good news for departing employees. Agreements between employees and employers on termination of employment (notably compromise agreements under Employment Rights Act 1996 s.203) often contain a full and final settlement clause under which the employee agrees to accept a cash lump sum in return for giving up any claims he may have arising from his employment or its termination. As is well known the basic tax position is that the first £30,000 of the cash sum is free of tax. However this £30,000 exemption does not apply if and to the extent that the cash sum is not in settlement of claims but is in return for the ex-employee agreeing to be bound by restrictive covenants. Almost invariably the ex-employee agrees not to sue the employer. That agreement not to sue can be viewed as a form of restrictive covenant so if any of the cash sum is attributable to that it will be taxable. Some tax inspectors believed that if some or all of the cash sum is refundable to the employer on breach of the restrictive covenant then, QED, that amount must have been attributable to the restrictive covenant. The result:- no £30,000 tax exemption. The Inland Revenue has taken legal advice and has now confirmed that this view was essentially flawed.

6. Employers Liability Insurance

7. Pension funds and OPRA

8. Data Protection

• In early December the Court of Appeal gave guidance on the meaning of "personal data" and of "relevant filing system". In particular mention of a person in a document held by a data controller does not make it personal data which must be handed over; and a filing system covering manual records will only be a "relevant filing system" if it provides ready accessibility similar to that of a computerised filing system. The Court of Appeal was highly critical of attempts to use the Data Protection Act as a method of getting hold of documents with a view to litigation.
• Draft part 4 of the Data Protection Code of Practice (employment) was published for consultation by the Information Commissioner on 3rd December 2003. The finished version is intended to be ready by end July 2004. Part 4 provides guidance about complying with the Data Protection Act 1998 when handling information about workers' health, including that of job applicants, agency and casual staff, all both past and present.

9. Disability Discrimination Bill

10. Partnerships Bill

This is a draft Bill prepared by the Law Commissions of England and Wales and of Scotland, published at end November but not yet officially adopted. A main proposed change is that partnerships in England and Wales would become legal entities as they already are in Scotland.

11. Unfair dismissal etc award - annual increase in limits